Extraordinary Mitigation

Extraordinary mitigation—or, more precisely, dispositional deviation for extraordinary mitigation—under G.S. 15A-1340.13(g) is a way for the court to impose a probationary sentence for a defendant whose offense class and prior record level ordinarily require an active sentence. The provision was included in Structured Sentencing as a counterbalance to the habitual felon law, although the latter is used much more frequently. Still, the law is a useful sentencing tool in certain cases, and certainly worth knowing about.

Extraordinary mitigation turns an “A” cell on the sentencing grid into an “I/A” cell, allowing the court to suspend an otherwise unsuspendable sentence. Extraordinary mitigation does not authorize the court to alter the term of imprisonment ordinarily required by the grid. It merely allows the judge to suspend that term of imprisonment and place the defendant on probation. State v. Messer, 142 N.C. App. 515 (2001).

Findings. To use extraordinary mitigation, the court must, under G.S. 15A-1340.13(g), find in writing that:

• The case presents extraordinary mitigating factors of a kind significantly greater than in the normal case;
• Those factors substantially outweigh any factors in aggravation; and
• It would be a manifest injustice to impose an active punishment in the case.

Those findings, which rest in the discretion of the trial judge, may be recorded on form AOC-CR-606.

To be considered extraordinary, a mitigating factor must be significantly greater than an ordinary mitigating factor. The judge must look to the quality of the particular factor, not the overall quantity of proffered mitigators, when evaluating extraordinary mitigation. The sheer number of ordinary mitigating factors cannot, standing alone, support a finding of extraordinary mitigation. State v. Melvin, 188 N.C. App. 827 (2008) (“[Q]uality of factors, not quantity, is the prime consideration for the trial court.”).

The trial judge is not necessarily precluded from making a finding of extraordinary mitigation based on facts that would support a statutory mitigation factor, but there must be additional facts present, over and above those required to support an ordinary mitigator. Id.; State v. Riley, 202 N.C. App. 299 (2010). For example, in State v. Williams, __ N.C. App. __, 741 S.E.2d 486 (2013), the trial judge erred by finding as an extraordinary factor that the defendant’s “level of mental functioning was insufficient to constitute a defense but significantly reduced his culpability.” The court of appeals held that factor to be inappropriate because it was “almost a verbatim recitation” of the normal statutory mitigating factor regarding the defendant’s mental condition. Additionally, the court’s finding that the victim consented to the crime (performing fellatio on the defendant) was also improper as an extraordinary factor in light of the victim’s age. The victim was 14, meaning her voluntary participation could not have supported even an ordinary mitigating factor, as that statutory factor applies only if the victim is at least 16. Williams, 741 S.E.2d at 493. If it could not be an ordinary factor, then it clearly could not be an extraordinary one.

Eligibility. Some offenses are not eligible for extraordinary mitigation. Under G.S. 15A-1340.13(h), the judge may not find extraordinary mitigation for:

• Class A or Class B1 felonies;
• Drug trafficking or conspiracy to commit drug trafficking; or
• Defendants with 5 or more prior record points.

Because extraordinary mitigation may not be used for Class A or Class B1 offenses or for offenders with 5 or more prior record points, the law may come into play in only six cells on the sentencing grid: Prior Record Level I and most of Prior Record Level II for Class B2, C, and D. Grid cells below those already allow a probationary sentence, and so the defendant would not be helped by a finding of extraordinary mitigation in any event.

Extraordinary mitigation is not used frequently enough to discern any real patterns in how it gets used. One not-so-recent change in the law might make extraordinary mitigation a better option in certain circumstances. Until 2003, a split sentence could not exceed one-fourth the defendant’s maximum sentence or 6 months, whichever was less. For offenses committed on or after December 1, 2003, the split sentence may be up to one-fourth of the maximum (the 6-month rule was repealed). For a first-time offender convicted of a Class C felony and sentenced to, say, 58–82 months, a judge who suspended the sentence through extraordinary mitigation would have up to 20 months of split time to work with. That’s a measure of flexibility that might come in handy in the right kind of case.